I thought if I said a different way the third time I might be able to get behind Pinterest and re-establish my inspiration boards.
Unfortunately, it’s not as easy as just clarifying some language.
Even though I’m pretty sure this is going to ensure that Ben never calls me again and that I will forever be the poster child for pinning paranoia, my concerns haven’t changed. And here is why: No matter how you say it, slice it, dice it, curse it or just disagree with it, U.S. Copyright law (and laws of many other countries) still says that you cannot reproduce the artistic creation of another. And, while I have no doubts that Ben Silberman and his team are becoming quite powerful, they can’t change the law overnight (though I’m pretty sure sites like Pinterest are leading us down the slippery slope of copyright abolition for digital images online – but that’s another blog). Because my inspiration boards would contain nothing but artistic creations by other photographers, most of whom did not give permission, I remain concerned that I would be violating the law. Now, as I pointed out previously, there are exceptions to the prohibition on reproducing another’s otherwise protected work and these exceptions result in what is deemed “fair use.” The fair use exception allows you to use copyrighted work in certain circumstances. I’m not going to re-write my original post and the points about fair use. As a good friend of mine says, “rinse and repeat.”
“d. Your responsibility for your content: …..
…. ii. To third parties. Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights….. It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards.”
Then they are kind enough to provide users with links to materials which will help you learn all you ever wanted to know about copyright and fair use.
Basically, under the new terms, if a Pinterest user plans to use the “pin it” button to pin work from third party websites (and, if we are being honest here, this is precisely what the site was intended for in the first place and what the vast majority of people’s pins consist of), that user must first analyze and determine if each pin might violate someone’s copyrights. In other words, for you to use Pinterest for it’s main purpose, you must stop, read, learn, think and play like a lawyer. You must first decide whether your pin or re-pin would be deemed by a court to be “fair use” of whatever image you are pinning. As I stated in my original post, determining what constitutes “fair use” can be a pretty complex and confusing analysis that is extremely fact specific and must be done on a case by case basis. That is really not what I want to be doing when I just want to pin pretty pictures. Do you? And even if you do read the materials and conduct the fair use analysis can you be sure that your pins fall under fair use?
All I know is that I’m a photographer AND a lawyer and I’m not even sure my pins will be deemed fair use in each instance. Yeah, yeah, I know, I’m not a copyright expert so what do I know? Well, this time I did turn to an IP expert for some back-up. One that knows her stuff. I called India Vincent, an attorney with the law firm of Burr & Forman, LLP in Birmingham, Alabama. India is the person I turn to when IP issues arise in both my work as an attorney and a photographer. We talked about Pinterest and we talked about my blog. When I asked her how I am supposed to figure out if my pins constitute fair use, this is what she said:
“Fair use is tricky because it is so fact specific. Whether or not something is a fair use depends on the purpose of the use, the nature of the copyrighted work, the portion of the copyrighted work that is used, and the effect of the use on the potential market value for the work. Any number of facts can alter the balance of these factors and change whether or not something is a fair use. The work that is pinned, the way in which it is pinned, the commentary associated with the pinned work and other factors can all influence whether a particular pin is a fair use.”
Yep, like I said, rinse and repeat. India’s response only confirmed for me what I stated in my original blog post - that fair use is tricky and complicated. And as I said before, this doesn’t give me much comfort that any fair use analysis I conduct before I pin something is going to be accurate or that a court would agree with me. Yet, this is exactly what Pinterest is asking us to do if we plan to pin third party content. After my conversation with India I’m more convinced than ever that pinning works that are not your own, whether it’s an original pin or a re-pin, is still risky (and don’t get me started on the licensing issues involved in posting and re-pinning third party content). So, I was right to be concerned. And I still am.
But , as Doctor Phil says, “do you want to be right or do you want to be happy?” So now what?
Well, I do want to be happy and as such I’m tempted to just pin away like everyone else. But I want to remain happy. And knowing that I might be violating someone’s copyrights by pinning won’t make me happy. Being sued will make me just downright sad. And mad. And you don’t want to see me sad and mad. I get this little eye twitch and my mouth turns down like a sea bass. It’s not pretty.
But giving up on Pinterest altogether won’t make me happy either. So, call me a doormat, or maybe just naïve, but I’m still giving Pinterest some time to figure this out. I will continue keeping my account. At least now I can pin my own work without being labeled “tacky” (well, at least not for pinning anyway), and I can pin work for which I have permission from the creator to pin. I might even pin stuff where I feel 99.9% sure that my use would be deemed fair use (but don’t look for much of that because I’m not sure I can trust my own analysis of fair use to be that sure). Meanwhile, I am asking, begging and pleading with Pinterest to get all of those brilliant and creative minds that reside over there in Palo Alto in the same room with the legal minds. Order a lot of coffee and sugary snacks to keep everyone awake and come up with some substantive changes to the way content on the site is pinned, displayed and shared so that it doesn’t feel like, smell like or sound like infringement. I want to use the site as originally intended. I liked being able to pin photos from all over the web to my boards. My boards are now pretty bare. Sniffle, sniffle.
Basically, Pinterest, keep as much of the beauty and appeal as you can while making changes so that I can pin from around the web without taking the risk for us both (yes, the indemnity language is still there. As a lawyer I know that it needs to be, but man, don’t tempt me with a beautiful site that encourages third party pinning and the tools to use it for such and then tell me if I use it I’m on the hook for both of us. That’s just …. just…not right IMO!).
Ben, I thought we had something going here and that you were going to come up with something that protected artists and users a little better. I’m beginning to wonder if that’s even possible. Show me that it is. I’ll wait for you.